Letter of the Law: Unfair Labor Practices—It's All in the Eye of the Beholder

By Laura Kushner

Fairness, like beauty, is probably very much defined by every “beholder.” This is certainly true when it comes to unfair labor practices (ULPs). While the Minnesota Public Employee Labor Relations Act (MPELRA) defines 12 items as unfair labor practices for employers and 15 for unions, how the law plays out in the real world is not so well-defined.

Good-faith bargaining Let’s take an example. An employer can commit a ULP by “refusing to meet and negotiate in good faith with the exclusive representative of its employees.” This one sounds simple. Your city’s management bargaining team can avoid this ULP simply by having negotiation meetings with the union. Done, right?

Sorry, not so simple; “good-faith” bargaining requires more than just having the meetings. A Google search of “goodfaith bargaining” leads to a Wikipedia entry on “surface bargaining.” Surface bargaining, according to Wikipedia, occurs when “one of the parties ‘merely goes through the motions,’ with no intention of reaching an agreement.” This is bad-faith bargaining. According to Wikipedia, the tactics might include “making proposals the other party could never accept, taking inflexible or unreasonable stands on issues, and/or refusing to offer alternatives to proposals.”

The problem is that the situation simply could be seen in very different lights by management and by the union. Take for example the item listed as “inflexible or unreasonable stands on issues.” Is it inflexible for the management bargaining team members to state that they cannot go beyond a 3 percent wage increase due to budget issues? It likely depends on whether the city has carefully considered the union’s proposal. Good-faith bargaining doesn’t mean the answer is “yes,” but it does mean the proposal is discussed and considered and, if possible, alternatives have been offered.

Concerted activities and social media Another type of ULP has been in the news in recent years due to the prevalence of social media. According to Minnesota law, “public employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid.”

While we don’t yet have much legal guidance in Minnesota about how this relates to social media, national cases indicate it will probably mean that employees have some legal protection when they post messages about work on Facebook and other social media. For example, sharing information about pay, benefits, and working conditions with their co-workers online might be protected activity, and interference by the city might be a ULP.

This legal protection does not necessarily extend to one individual worker griping about work. That’s generally not a “concerted” or group activity. However, if the person is trying to initiate some group action, it might be. It’s pretty easy to see that judging whether this type of situation creates a ULP will be difficult.

Other potential ULPs While concerted activity is in the headlines, there are many other areas ripe for a ULP to occur. When a new union is being formed in a city, tensions can be high and charges of ULP’s can easily occur. A public employer commits an unfair labor practice by dominating or interfering with the formation of any employee organization or by using its influence to encourage or discourage membership in an employee organization. Cities must consider every employment action carefully during union organizing drives to avoid committing a ULP.

Employees and unions can commit ULPs as well. For example, Detroit teachers called in sick to work in large numbers in May of this year to protest the possibility they would not be paid over the summer. Generally speaking, in Minnesota such a “sickout” would be considered a ULP.

ULP complaints likely to increase Besides social media issues, another reason ULPs are in the news is that the 2014 Minnesota Legislature created a Public Employees Relations Board (PERB) to process and adjudicate claims of unfair labor practices. The PERB was originally scheduled to start on July 1, 2016, but the 2016 Legislature postponed the start date to July 1, 2017.

ULPs are currently filed in district court, which makes the process expensive and time-consuming. Once the PERB takes over this work, it’s likely that ULP complaints will increase due to greatly reduced costs associated with filing a complaint.

Laura Kushner is human resources director with the League of Minnesota Cities. Contact: lkushner@lmc.org or (651) 281-1203.